Database right prevents more than just cut 'n' paste copying, rules ECJ

A judgment by Europe’s highest court has strengthened the rights of database creators to protect their work from being used by third parties without permission. The database right protects against more than just copying and pasting, it ruled.

The decision by the European Court of Justice (ECJ) means that the transfer of material from a protected database to another database may be prevented, even if there is no technical process of copying.

The ECJ affirmed the right of the University of Freiburg to protect the content of a database of poem titles from commercial exploitation by an unrelated company.

The judgment said that, where the maker of a database makes the contents of that database accessible to third parties, even if they have to pay for access, the maker may not prevent those third parties from consulting that database for information purposes.

It is only when the on-screen display of the contents of that database necessitates the transfer of all or a substantial part of those contents to another medium that the maker's authorisation may be required.

The EU Database Directive of 1996 created a right to protect the content of databases that are the subject of significant investment, even when they are not protected by copyright law. Databases are protected by copyright law when they are considered creative enough to qualify.

The right, however, has been a controversial one because of a lack of clarity about the exact extent of its protection.

It received a setback in 2004, in a case in which the British Horseracing Board was told that it could not refuse bookmaker William Hill access to its database of the horses and riders running on a particular day.

The ECJ had ruled that the British Horseracing Board had not put enough effort into the creation of its database to qualify for protection in a ruling that was widely viewed then as weakening the EU's database right.

The ECJ ruled yesterday in favour of the University of Freiburg and one of its professors, Dr Ulrich Knoop. The ECJ did not have to decide what constitute a database under the Directive. Instead, it focused on what constitutes infringement.

Professor Knoop oversaw the compilation of the 1,100 most important poems in German between 1720 and 1900. The list of titles was published on the internet and served as the basis for an anthology compiled by the university. The list took two-and-a-half years to compile, costing the University €34,900.

A company called Directmedia Publishing then published a CD-ROM called '1000 poems everyone should have', on which 876 of the poems date from the period 1720 to 1900. All but 20 of these also featured in Knoop's list.

Knoop and the University sued Directmedia, claiming that it had infringed Knoop's copyright as compiler of an anthology and the University's right as a maker of a database.

Germany’s Federal Court of Justice had already upheld the action brought by Knoop as compiler of an anthology. It accepted that the list of titles constituted a 'database' within the meaning of the Directive, so the ECJ did not revisit the most controversial analysis of the British Horseracing Board case.

Instead, the ECJ was asked whether Directmedia’s use of the contents of the database constituted an ‘extraction’ within the meaning of the Directive.

The judgment was delivered four months after ECJ Advocate General Eleanor Sharpston published her opinion on the case, in which she advised that extraction from a database "does not presuppose the [physical] copying of data.”

She said: “In order to constitute an ‘extraction’ … it is immaterial whether the transfer of data from a database … and their incorporation in a different database takes place following individual assessments of the data after consulting the database."

Sharpston said that her opinion was based on the British Horse Racing Board ruling.

“It seems to me that transcribing the content of a database after consulting it on-screen and then incorporating it into a different database is just as likely to prejudice the investment of the maker of the database as copying that database electronically or photo-copying it," she said.

"The Court’s analysis in The British Horseracing Board does not presuppose that ‘extraction’ should be limited to these latter ways of copying (parts of) a database.”

The ECJ agreed.

"It cannot … be argued, as Directmedia has done, that only acts consisting of the mechanical reproduction, without adaptation, by means of a standard ‘copy/paste’ process, of the contents of a database or a part of such a database fall within the concept of extraction," it said.

The judgment continued: “It is of little importance that the act of transfer in question is for the purpose of creating another database, whether in competition with the original database or not, and whether the same or a different size from the original, nor is it relevant that the act is part of an activity, whether commercial or not, other than the creation of a database.

"Moreover … the transfer of all or a substantial part of the contents of a protected database to another medium, which would be necessary for the purposes of a simple on-screen display of those contents, is of itself an act of extraction that the holder of the sui generis [unique] right may make subject to his authorization," it said.

The judgment concluded: “The transfer of material from a protected database to another database following an on screen consultation of the first database and an individual assessment of the material contained in that first database is capable of constituting an ‘extraction’ [within the meaning of the Directive] to the extent that – which it is for the referring court to ascertain – that operation amounts to the transfer of a substantial part, evaluated qualitatively or quantitatively, of the contents of the protected database, or to transfers of insubstantial parts which, by their repeated or systematic nature, would have resulted in the reconstruction of a substantial part of those contents."

The case now returns to Germany to resolve the original dispute, in which the District Court ruled in favour of Knoop and the University. Directmedia’s appeal to the Provincial Court of Appeal failed so it appealed on a point of law to the Federal Court of Justice. This court referred it in turn to the ECJ for a preliminary ruling.